Archive for February 2018
Understanding the SQE and what it means for me | The University of Law
Excellent summary of pending changes to the route to qualification for solicitors. Further postings will appear as details become clearer and timelines are settled
Source: Understanding the SQE and what it means for me | The University of Law
Practitioners and academics: new alliances
In my book Introduction to the English Legal System, I argue that legal academics play an important role in the development of our understanding of the law and that their role should be given more recognition than it sometimes has had in the past. (See Chapter 9, section 9.10).
Recently, however, my interest has been stimulated by stories in the professional legal press concerning a rather different collaboration between the world of legal practice and the academic world.
A number of firms, particularly those engaged in personal injury litigation, have been working with academic statisticians and ‘decision scientists’ to try to understand what are the variables that are in play when litigation is under consideration and thus trying to understand better the risks of taking particular cases on and to predict better the potential outcome of issues that are being litigated. This may help practitioners to decide whether a case should settle, or be fought through to trial.
The firms concerned think this may be beneficial both for small value large volume groups of claims, as well as high value claims. One finding that has emerged from this work is that the models that are being used suggest that the upper level of the Judicial College Guidelines on damages for different types of injury is almost irrelevant in most cases.
It is possible that this approach might also be used by the Courts and Tribunals service to analyse cases that pass through the courts. It might help, for example, in making determinations on which cases might be suitable for the small claims track or the fast track in the allocation of civil disputes in the county court – a possibility hinted at by Sir Ernest Ryder in a recent speech where he said:
Digitisation will, if we are sensible, provide us with the opportunity to gather data on the operation of our justice systems in ways that we have often been unable to before. It provides us with the opportunity to make our justice systems more adaptive; but again, only after proper scrutiny and discussion.
It seems to me that these initiatives will grow in number in the near future. What will be needed is proper evaluation of these tools to see whether they do in fact assist in both legal and judicial practice, and how they might be developed.
For press reports on these initiatives see https://www.legalfutures.co.uk/latest-news/hodge-jones-allen-embraces-predictive-modelling-pi-work; and https://www.legalfutures.co.uk/latest-news/leading-law-firm-joins-forces-lse-professors-find-ways-predict-litigation.
Sir Ernest Ryder’s speech is at https://www.judiciary.gov.uk/wp-content/uploads/2018/02/ryder-spt-open-justice-luxembourg-feb-2018.pdf
Going digital – piloting video hearings
The Transforming our Justice System reform programme has flagged the possibility of much more use of digital technology in the processing and handling of disputes. Following the announcement at the beginning of February 2018 that it is now possible to start divorce proceedings on-line (see this blog for 2 Feb 2018), we now have a new announcement about how cases might be heard using new technologies
This development, announced on 15 February 2018, concerns the piloting of video hearings in the Tax Tribunal. This initiative will be rolled out in a measured way, with potential participants being asked whether they would like their cases to be dealt with on-line.
It seems that the Tax Tribunal has been chosen for this experiment as it is presumed that many tax cases turn on rather complex points of law, rather than major disputes on questions of fact which might require the presence of parties in the same room.
This new announcement builds on another pilot, which ran in the autumn of 2017 in which a number of case management hearings in the Immigration and Asylum Chamber were dealt with through video hearings. The results of these seem to have been very positive and demonstrate that such issues can be dealt with more efficiently on-line without compromising standards of justice.
HMCTS do seem to be taking a measured approach to these developments, wanting to bring all those involved – judges, practitioners and litigants – with them, to ensure that these developments do meet user needs.
Further announcements will emerge in the months ahead.
To read more about the video Tax Hearing pilot, see https://www.gov.uk/government/news/video-hearing-pilot-launched.
For the HMCTS blog on these developments go to https://insidehmcts.blog.gov.uk/2018/02/15/video-hearings-can-make-a-difference-for-court-and-tribunal-users/
Family justice: reforming public law case procedures
Hot on the heels of the announcement of on-line divorce applications (see this blog Feb 2 2018), information has just been published as a blog from HMCTS on developments relating to the digitalisation of procedures relating to public law childrens’ cases.
Emma Petty, Service Manager for the Public Law project, writes:
We want to make the public law process more efficient, ensuring the court, parties and their representatives have access to the right information at the right time to help decide the best outcomes for children involved in public law cases. Based on our early thinking, the aims of the project could be to:
- provide an online application process which speeds up the gatekeeping process and shares information with partner agencies at the point of submission
- improve the process for dealing with urgent applications
- enable users to see the progress of their case and to take action to progress their case online
- provide clear signposting to support available outside HMCTS, to assist parties acting in person and without a lawyer
- enable users to upload and access documents and evidence digitally both outside and inside the courtroom
- ensure suitable facilities and support are provided at hearing centres
- enable hearings, where appropriate, to be conducted online
- provide fast digital access to outcomes of hearings
- ensure those who need it get the support they need to access our digital services.
Over coming months, the Public Law Project team will be working with practitioners and others involved in these types of case in developing practices and procedures to deliver these goals. This is an important development within the scope of the Transformation of the Justice System policy.
Further detail is at https://insidehmcts.blog.gov.uk/2018/02/07/designing-a-public-law-service-to-meet-user-needs/?utm_medium=email&utm_source=
Controlling trolling? A job for the Law Commission
Although the Law Commission’s 13th Programme of Work was announced only in December 2017, the Commission has already had those plans amended by the Government asking whether changes to the law are needed to ensure that internet trolling can be controlled. More specifically the government has asked the Law Commission to review the laws around offensive communications and assess whether they provide the right protection to victims online.
This is a serious problem. Research shows that nearly a third of UK internet users were on the receiving end of trolling, harassment or cyberbullying in 2017.The Commission will review the current laws and set out how they apply to online communications. Its work be informed by developing Government policy in the Government Digital Charter. (See https://www.gov.uk/government/publications/digital-charter published in January 2018.)
Among issues to be addressed are the following:
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How the Malicious Communications Act 1988 deals with offensive online communications
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How the Communications Act 2003 deals with online communications
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What “grossly offensive” means and whether that poses difficulties in legal certainty
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Whether the law means you need to prove fault or prove intention to prosecute offensive online communications
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The need to update definitions in the law which technology has rendered obsolete or confused, such as the meaning of “sender”
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How other parts of the criminal law overlap with online communications laws
It is intended that thw work should be undertaken swiftly. A consultation paper is expected within 6 months.
For further detail see https://www.lawcom.gov.uk/government-asks-law-commission-to-look-at-trolling-laws/
Divorce on-line: recent developments
On January 30 2018 the Government announced that a fully online divorce application process is being tested across England and Wales for the first time. (It had been trialled in a small number of areas from 2017.)
The initial pilot allowed people seeking a divorce to use an online system which offered prompts and guidance to assist them in completing their application. But they still had to print off the form and send it to the court.
HM Courts & Tribunals Service (HMCTS) has now extended the service so that the application is now fully digital – submitting the form, sending the relevant documents, and payment. In the first week HMCTS received 130 online applications.
According to HMCTS the online system has drastically cut the number of applications being returned because of errors – showing a 90% improvement from paper forms. This is particularly important given the increasing numbers seeking a divorce without using a lawyer to help them.
Users of the new service seem to like it. It has already gained positive feedback with people welcoming the simplified, streamlined and easy to understand system which delivers their application instantly – without the worry of it being lost in the post.
The next stages will include making the system available for use by legal representatives. A date has not yet been publicly announced for this further development.
For further detail, see https://www.gov.uk/government/news/hm-courts-and-tribunals-service-tests-fully-digital-divorce-application
Experience in other contexts suggests that once up and running, use of on-line application procedures will increase very rapidly. Indeed, people will wonder why this development had not occurred years ago. This sort of development is at the heart of the Transformation of our Justice System reform programme.
Disclosure of evidence: planning for change – first steps
In July 2017, the Inspectorates of the Crown Prosecution Service and Constabulary published a very critical report on the failure of police and prosecution services to apply the rules relating to the disclosure of evidence held by police/prosecutors to defence teams. (I noted the report here in November 2017).
Since then, it seems that the issue of the failure of the police and prosecution to disclose evidence to defence lawyers which might undermine or weaken the prosecution case has received almost daily attention in the mass media. A number of well publicised cases have emerged in which those accused of serious crimes (in particular rape) have found out only at a late stage that evidence which undermines the case against them is available.
A number of reasons have been advanced for these failures. For example, it is argued that the current law was put in place before the arrival of mobile phones and the vast amounts of electronic data that is generated on phones and tablet.
It is also argued that police and prosecutors lack the resources to comb through all this information to see what might by relevant.
This is an extremely serious issue which goes to the heart of the criminal justice system. People must feel that the system is fair and that those who run it are complying with the rules.
Clearly both the police and CPS are taking this issue seriously. The first tangible step has recently been taken. At the end of January 2018, a plan was published by the Crown Prosecution Service (CPS), the National Police Chiefs’ Council (NPCC) and the College of Policing. This sets out measures designed to improve practice in this area.
These first steps include:
- Reviewing disclosure training with the College of Policing
- Developing a cadre of specialist and experienced disclosure experts in every force
- Providing all multimedia evidence from the CPS to the defence digitally
- Putting in place specific improvement plans for each force and CPS area
- Setting up a system for the CPS and police to better identify and deal with cases with significant and complex disclosure issues.
This will not be the last word on this subject. Much work has to be done to ensure that all those engaged in the criminal justice system actually act in accordance with the statutory rules on disclosure. But it is an important first step.
The text of the plan can be found at http://www.npcc.police.uk/Publication/National%20Disclosure%20Improvement%20Plan%20January%202018.pdf
Administrative justice: research review
This links to an important publication from the UK Institute for Administrative Justice:
Research Roadmap: Where we’ve been and where we need to go with administrative justice research
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 